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Thursday, April 06, 2000

Three judges talk about their first time
National Post

Three judges of the Supreme Court of Canada reflected on the history of the Supreme Court, its present role and the way in which they make decisions. Here are edited excerpts from their comments.


On the judges and cases that had the biggest impact on the court and the country:

Michel Bastarache: As a law student, the first judge that left an impression on me was Justice [Ivan] Rand [served 1943-59], admired for his clear writing and his approach to the division of powers. ... He tried to relate things more to the Canadian experience rather than to the history or to the language of the Constitution, which was of course borrowed to a large extent from English statutes dealing with other realities.

Then we were faced with the novelty of the decisions of [Chief Justice Bora] Laskin [served 1973-84] in the area of human rights under the legislation prior to the [1982] Constitution. What was impressive to a young student in law at the time was the fact that he was willing to tackle the old ways of interpreting. He was willing to look at American jurisprudence and break away from the English mould.

Later, as a lawyer, the person I admired most was Brian Dickson. His early decisions on the Charter were very enlightening, and I thought he had a beautiful way of writing. ... I think he created the ambition for using the Charter to attain certain ideals for the development of the law as it affects private individuals.

John Major: I suppose you should break the court into two periods of time. The time while they were an intermediate court of appeal, and then after 1949 when they were a final court of appeal.

As an intermediate court, the enduring case is the Peoples case in which women were found not to be persons for the purposes of being appointed to the Senate. On a strict construction of the statute, I think everyone agrees that [Chief Justice Sir Lyman Poore] Duff [served 1933-44] may have been correct. But with hindsight it seems particularly narrow ...

In the modern day, I can't quarrel with Michel's choice. But the judge I thought wrote with clarity, he didn't write a lot but what he wrote was quite elegant, was Justice [Jean] Beetz from Quebec [served 1974-88].

But I can't bring myself to say I have any heroes.

Beverley McLachlin: The Alberta Press case [of 1938] is also an important case. Here we had a country with no written Bill of Rights at all, much less a constitutional one, and the issue was can a government limit press freedom by a law that said any commentary on government policy would have to be submitted to the government first for approval. ... The Supreme Court said that was a bad law because they found an inherent right of free political expression underlying Canadian democracy. ... That was a courageous thing for the Court to do, and it involved a great deal of judicial innovation.


On how the court reaches its decisions:

Beverley McLachlin: We go into our conference room, we have a round table there, and we sit around it and discuss. We start with the most junior person, and we hear from each person in turn.

The discussions can go on for a very long time. At the end, we end up with some sort of assessment of where the position is at that point. But even then it can change. When you read what somebody else has written, you may change your mind.

Michel Bastarache: When I speak to students at law schools they invariably ask me, 'How many times do you change your mind after listening to counsel?' ... I've changed my mind very few times. It does happen, but it's very seldom. But if they asked me, "How many times did you change your mind, or change your focus or narrow your view or enlarge it after discussion with your colleagues?" then I would say a great many times. ... We agree to disagree on certain things, but we also agree to narrow our decision and to get a strong position on one question and leave something for later.

Beverley McLachlin: I have actually changed my mind on a number of occasions as a result of counsel.


On their first day sitting as a Supreme Court judge:

Beverley McLachlin: I remember being quite intimidated. There I was feeling very inadequate. There was the great Brian Dickson, and the great Bertha Wilson, and the great Claire L'Heureux-Dube, and so on. I had worked hard through the night to try to tease my thoughts into some sort of clarity. I had my notes there and ended up abandoning them. As I recall, I was very, very incoherent but everyone comforted me and said, that was alright, that was the name of the game, just get your thoughts out.

John Major: There were intervenors and it was a long appeal that took most of the day. I spoke first and I was in favour of dismissing the appeal. But the final judgment was 8-to-one to allow. [laughter]

It's always been that way, people say what they think. No one scolds them to say, 'Shame on you, you had a bad opinion.'

Michel Bastarache: I was also quite nervous because I didn't know really what I was supposed to do. I didn't know whether I was supposed to speak five minutes or 15 minutes or just give the result, or give a full analysis of the case. I was counting the number of heads around the table, thinking 20 minutes per person would be much too long here ... It was that kind of experience.


On how they personally make decisions:

John Major: Even with a purchase of a jacket, you debate as you're brushing your teeth, should I buy the red one and not the blue one? Things like that can happen. You can't just sit at your desk and say, 'Well, now I'm going to decide, and in the next 10 minutes the decision is going to come.' These things sort of come deductively, and you think you're more comfortable with one point of view for a while, and you may flip-flop and come back. We are all a bit like Paul on the way to Damascus.

Beverley McLachlin: You're not in a position to even start engaging in this process until you've read all the material, and understood the legal points, read the authorities, feel you have a grasp of where the heart of the case is, feel you have a grasp of how it will play out in the real world if you go this way or if you go that way.

Michel Bastarache: When I am preoccupied, I think about it all the time. I just can't get it out of my mind until I've got a draft that's circulated and is starting to get comments from colleagues.

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